In Gold Group Enterprises, Inc. v. Bull, 2015 WL 3794719 (D.N.J.,2015), Judge Hammer granted in part and denied in part a Motion to Quash a TCPA subpoena issued to a third party service provider. Petitioner Gold Mobile was not a party to the litigation. According to Gold Mobile’s Executive Vice President, Gold Mobile provided various technological platforms and services that allowed companies to engage consumers and promote their businesses to existing and prospective customers. Gold Mobile’s platforms and services included various mobile engagement programs. As part of Gold Mobile’s services, Gold Mobile sent promotional e-mails and texts at the request of its clients, and facilitates other forms of communication between its clients and those clients’ existing and prospective customers. The subpoena issued by the TCPA Class Action Plaintiffs sought “All data concerning any text messages sent where the purpose of such call included development of business for U.S. Coachways, Inc. A full response to include at least the following: the target list, call detail records and a copy of the text message sent.” The District Court narrowed the scope of Gold Mobile’s obligation to respond to the subpoena.
In this case, Respondent’s contention that at least some of the discovery sought is relevant to the underlying action is well taken. For example, for Respondent to establish a meritorious cause of action under the TCPA, it will need to prove that U.S. Coachways transmitted its advertisements, or caused those advertisements to be transmitted, using an “automatic telephone dialing system” to call a number that has been assigned to a cell service. 47 U.S.C. §§ 227(a)(1) & (b)(1)(A)(iii)). Therefore, the manner by which Petitioner transmits the advertisements on behalf of U.S. Coachways is clearly relevant. Respondent points out that only Gold Mobile has that information, and Gold Mobile does not disagree. Some degree of information about other individuals to whom Gold Mobile transmitted advertisements on behalf of U.S. Coachways also may be relevant. . . . It is reasonable to conclude that Respondent will be entitled to at least some discovery regarding the number of individuals to whom Gold Mobile sent text-message advertisements on behalf of U.S. Coachways. That information will likely be critical to Respondent’s ability to establish numerosity. Similarly, Respondent may well be entitled to the messages that Petitioner sent on behalf of U.S. Coachways, insofar as both the manner in which those texts were transmitted and the substance of those messages is likely relevant to the issues of commonality and typicality. Moreover, that Respondent is entitled to discovery on the elements of class certification does not necessarily entitle him, at this stage, to the specific names and contact information for each individual whom Gold Mobile contacted on U.S. Coachway’s behalf. Respondent avers that the court in the underlying litigation already addressed this issue because it did not bifurcate class and merits discovery. Respondent’s Brf., D.E. 4, at 8. But that argument elides the point. The fact that Respondent is entitled to discovery necessary to move for class certification, and on the merits of its claims, does not necessarily mean it is entitled, at this point, to personally identifiable information for all individuals who might have received an advertisement from U.S. Coachways, before the certification has even been granted. It may be that for purposes of numerosity, for example, it is sufficient for Plaintiff to know the total number of individuals who received, within the four-year limitations period, text advertisements from U.S. Coachways similar to Plaintiff’s. Similarly, for purposes of commonality and typicality, Respondent fails to explain why the texts themselves and the manner in which they were delivered, would be insufficient.2 However, the subpoena makes no such distinction; nor does Respondent offer one in opposing the motion to quash. Accordingly, the Court grants in part and denies in part the Petitioner’s motion to quash [D.E. 2]. The Court denies the motion insofar as Request No. 1 seeks information, for the four years before the filing of the complaint, about: (1) the total number of individuals who received text advertisements from U.S. Coachways similar to Plaintiff’s; (2) the substances of those text messages sent on behalf of U.S. Coachways; and (3) the manner by which Petitioner delivered those text messages on behalf of U.S. Coachways.
Gold Group Enterprises, Inc. v. Bull, 2015 WL 3794719, at *4 (D.N.J.,2015)